New York State Court of Claims

New York State Court of Claims
HERNANDEZ v. THE STATE OF NEW YORK, # 2018-054-012, Claim No. NONE, Motion No. M-91484


claimant's application for pre-action discovery and a temporary restraining order denied, defendant has represented that the videotape and all material relevant to the claim have been preserved.

Case information

UID: 2018-054-012
Claimant short name: HERNANDEZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-91484
Cross-motion number(s):
By: David A. Kates, Esq.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 9, 2018
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimant's application for pre-action discovery:

Order to Show Cause, Proposed Order, Petition, Attorney's Supporting Affirmation and Exhibits..............................................................................................................1

Affirmation in Opposition and Exhibits...................................................................2

On July 31, 2017, claimant, proceeding pro se, served defendant with a Notice of Intention to File a Claim alleging that on June 16, 2017, during claimant's incarceration at Fishkill Correctional Facility, at approximately 11:00 a.m., he was assaulted by Correction Officers Latourette and Eull, resulting in a fractured pelvis (Defendant's Ex. B). Claimant further alleged that there was a videotape of the incident (id.).

By letter dated July 19, 2017, claimant's attorney advised defendant that he had been retained by claimant (Claimant's Ex. B). The letter also stated "[p]lease be further advised that you are hereby directed to preserve, unaltered, all videotapes, surveillance video and/or visual recording made of claimant or claimant's incident and premises, for a 24-hour period, prior to and including June 16, 2017" (id.).

On August 3, 2017, counsel for claimant served defendant with a second Notice of Intention to File a Claim which further detailed the location of the assault as the P Unit, between cells 4 and 5 (Defendant's Ex. C, Claimant's Ex. A).

Claimant's counsel brought an Order to Show Cause(1) seeking, inter alia, an order directing defendant to preserve the videotaped surveillance of claimant for the 24-hour period of June 16, 2017, and all information vital to the claim including "all investigations, reports, bills, logs, journal entries, notes, time sheets, diaries and any and all other writings and computer entries generated" in connection with the alleged incident (OTSC, C). Claimant's counsel also sought a temporary restraining order preventing defendant from altering any evidence and permitting claimant's counsel to examine and copy the videotape.

Defendant opposes claimant's application noting that, pursuant to defendant's standard practice, once claimant's Notice of Intention to File a Claim was served upon defendant, the Attorney General's office made a request to the Department of Corrections and Community Supervision seeking a litigation hold that all material related to the subject matter of the potential law suit be preserved on an ongoing and continuing basis. Counsel for defendant affirmed that, upon information and belief, the videotape of the incident and other related materials have been preserved (Affirmation, 5). Defendant further argues that claimant has not made a sufficient showing to warrant a restraining order of pre-action discovery under CPLR 3102 (c).

While defendant has represented that the videotape and all material relevant to the claim have been preserved, claimant has not shown any basis for granting the relief he seeks or any explanation as to why discovery cannot proceed in the ordinary course once a claim has been served and filed (see Matter of Byramain v Stevenson, 278 AD2d 619 [3d Dept 2000]; Bishop v Stevenson Commons Assoc., L.P., 74 AD3d 640 [1st Dept 2010]).

Accordingly, claimant's application is DENIED.

February 9, 2018

White Plains, New York


Judge of the Court of Claims

1. The signed Order to Show Cause was filed on December 1, 2017.